816 F.

2d 939

Kenneth WILLIAMS, Plaintiff-Appellee,

v.
Robert R. KELLY, Warden, Defendant-Appellant.
No. 86-7281.

United States Court of Appeals,

Fourth Circuit.
Argued March 4, 1987.
Decided April 13, 1987.
Rehearing and Rehearing In Banc Denied May 12, 1987.

Linwood Theodore Wells, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty.
Gen. of Va., on brief), for defendant-appellant.
Andrea Celestine Long (Boone, Beale, Cosby & Hyder, on brief), for
plaintiff-appellee.
Before HALL, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and
TIMBERS, Circuit Judge for the Second Circuit, sitting by designation.
TIMBERS, Circuit Judge:

Appellant Robert R. Kelly, Warden of the Deerfield Correctional Center at

Capron, Virginia, ("appellant") appeals from an order entered August 29, 1986
in the Eastern District of Virginia, David G. Lowe, Magistrate, which granted a
petition by appellee Kenneth Williams ("appellee") for a writ of habeas corpus.
The magistrate granted the petition on the ground that appellee had been denied
effective assistance of counsel at his state criminal trial.

Appellee was convicted of felony murder in a Virginia state court after a bench
trial. The prosecution's evidence at trial consisted largely of testimony by a
police officer regarding a confession made by appellee. That evidence
established that appellee and another man had taken a radio from the victim and
that the other man had stabbed and killed the victim. Appellee's counsel did not
move to strike after the prosecution's case. Appellee then was called to the
witness stand and testified regarding other details of the crime. His testimony

established clearly that violence had been used before appellee and the other
man had taken the victim's radio. Under Virginia law, appellee could not have
been convicted of felony murder unless he participated in a robbery of the
victim. An element of robbery in that State is that violence or intimidation
precede or coincide with the taking of property.
3

In his habeas petition, appellee claimed, first, that he had been denied effective
assistance of counsel at his trial, and, second, that the indictment was
constitutionally defective. The magistrate, in granting appellee's petition, held
that his counsel's failure to move to strike after the prosecution's case, coupled
with counsel's advice to appellee to testify, rendered counsel's performance
constitutionally deficient. According to the magistrate, appellee could not have
been convicted on the prosecution's case alone since it did not establish that
violence had preceded or coincided with the taking of the radio.

On appeal, appellant claims that the magistrate erred in granting the petition
since appellee failed to make the requisite showings under Strickland v.
Washington, 466 U.S. 668 (1984), that counsel's performance was deficient and
that the deficiency prejudiced the defense.

We hold that appellee's ineffective assistance claim fails since he has not shown
that his counsel's performance was deficient: counsel's failure to move to strike
and his advice to appellee to testify were part of a reasonable trial strategy. We
therefore reverse the order of the magistrate granting the petition. Since the
magistrate did not address appellee's claim based on alleged defects in the
indictment, we remand the case for consideration by the magistrate of that
claim.

We reverse and remand.

I.
7

We summarize only those facts believed necessary to an understanding of the

issues raised on appeal.1 In view of the importance of the facts in this habeas
case, we set them forth in detail.

At approximately 8:00 p.m. on October 3, 1980, Kirkwood Mathews arrived at

the house of a friend--Lorraine Jessup--at 3004 "S" Street in Richmond,
Virginia. Mathews left the house at 8:45 p.m. to purchase a bottle of vodka. He
had with him a portable combination radio and cassette tape player. Later that
evening, Detective Donald C. Gery of the Richmond Police Department,

responding to a call, discovered Mathews lying on the front porch of a

residence situated at 2508 "Q" Street. Mathews had a stab wound on the right
side of his neck, near the collar bone. Evidence nearby indicated that Mathews
had been stabbed on North 25th Street in front of a liquor store and had
stumbled to the residence on "Q" Street in an unsuccessful quest for assistance.
At Gery's direction, Mathews was rushed by ambulance to a hospital. After
remaining unconscious for several hours, Mathews died early in the morning of
October 4. The autopsy report stated that Mathews had bled to death.
9

Through a subsequent investigation, Detective Gery learned that the portable

combination radio and cassette tape player had been taken from Mathews some
time after he left Jessup's house. On October 10, Gery observed a 14 year old
boy carrying such a radio on Mosby Street. Gery then met with the boy's father,
John T. Brown. Gery learned that the elder Brown, who had a previous
acquaintanceship with appellee, had purchased the radio from appellee and
another man for $45 sometime after 9:00 p.m. on October 3.

10

On November 16, a magistrate in the Richmond General District Court (a state

court) issued a warrant for the arrest of appellee on the complaint of Detective
Gery. Gery arrested appellee the following day. After Gery advised him of his
rights, appellee confessed to his participation with another man, Ronald Rivers,
in the events leading to the death of Mathews.

11

Some time after appellee's arrest and confession, James Hatcher Johnson, Esq.,
was appointed to represent appellee in connection with criminal charges to be
filed against him in Division One of the Richmond Circuit Court.2 Although the
state court record is not entirely clear, it appears that both appellee and Rivers
were charged with capital murder of Mathews, Va.Code Ann. Sec. 18.2-31
(1982), and the robbery of Mathews' radio. At a preliminary hearing on the
charges, appellee, with Johnson present, testified to the involvement of himself
and Rivers in the events resulting in Mathews' death. A transcript of the hearing
is not in the record before us. After the preliminary hearing, the state
prosecutor agreed to seek an indictment against appellee only for first degree
murder and robbery, but not for capital murder, if appellee would testify against
Rivers at trial. Appellee did testify. Rivers was convicted after a jury trial
before Richmond Circuit Judge James M. Lumpkin. Judge Lumpkin sentenced
Rivers to 28 years imprisonment.

12

After Rivers' conviction, the state prosecutor informed Johnson that, because of
appellee's cooperation, he intended to try appellee only for first degree murder
or robbery, but not both, if appellee either would plead guilty or agree to waive
his right to a jury trial.

13

On January 5, 1981, appellee was indicted for robbery and first degree murder.
A Virginia statute defines first degree murder as including, among other types
of murder, murder committed during the commission of certain types of
felonies; or, what was known at common law as "felony murder". Va.Code
Ann. Sec. 18.2-32 (1982) ("Murder, in the commission of ... robbery ... is
murder of the first degree."). Both first degree murder, Va.Code Ann. Sec.
18.2-10(b) (1982), and robbery, id. Sec. 18.2-58 (1982), carry maximum
penalties of life imprisonment.

14

The murder charge against appellee was tried before Judge Lumpkin on
February 13, 1981. At the beginning of the proceedings, appellee pleaded not
guilty and waived his right to a jury trial. After ensuring that appellee
understood the elements of the charge against him and that his waiver of the
right to a jury trial was made knowingly, Judge Lumpkin accepted the plea and
the waiver.

15

The prosecution called three witnesses. Jessup testified that Mathews had left
her house on the evening of October 3 to purchase vodka and that he had the
radio with him on his departure. Brown testified about the sale of the radio to
him by appellee and Rivers. The prosecution's last witness was Detective Gery.
After Gery testified on direct examination concerning the details of his
investigation of Mathews' death, he testified regarding appellee's confession
referred to above:

16

"Q ... [D]id there come a time then that you advised him of certain
constitutional rights?

17

A Yes, it was.

18

Q All right, would you relate to the Court what, if any, rights you advised him
of?

19

....

20

Q All right, let me stop you at this point? .... Was this a tape recording or is this
your recollection?

21

A This is a tape recording that was taken and subsequently transcribed.

22

....

22
23

Q ... [W]ould you relate to the Court what, if any, statement he made to you?

24

A You don't want me to--you just want me to summarize the--it's rather

lengthy--

25

Q Summarize it if you would?

26

A He indicated that on the night of the offense that he and a subject, Ronald
Rivers, were together and that they had seen the victim walking in the eleven
hundred block of North 25th Street.

27

They had also seen that he was carrying a tape player, it was their intention to
take the tape player from the victim, which they did.

28

He stated that he had gotten the tape player and cross the street and realized
that a struggle was taking place between Mr. Rivers and the victim.

29

....

30

Q All right, what else?A And he stated that they were fighting and that he was
pulling a knife on him.

31

He stated that after this altercation on 25th Street they went to his home and
then sometime shortly after that went to Tulip and Venable where they sold the
tape player to Mr. Brown.

32

He later realized, I think it was the following morning that the young man had
been killed and that's basically the gist of the statement.

33

....

34

Q All right, and can you describe again for the Court, because I didn't follow it,
what was the method of attack that they were going to use on the man that they
had agreed--

35

A They were just going to take the tape player from the young individual and I
assume run,

36

Q All right, thank you?

37

A a snatch type thing."

38

As is apparent from Gery's testimony, a tape recording, and a transcript of that

recording, had been made of appellee's confession. Neither the tape nor the
transcript, however, were introduced in evidence at the trial, and neither is in
the state court record before us.

39

After Johnson cross examined Gery, the prosecution rested. Johnson made no
motions on behalf of appellee. He proceeded to put on the defense case.
Appellee was the only witness for the defense. Appellee testified on direct
examination by Johnson in relevant part as follows:

40

"Q All right, would you tell His Honor in your own words, what happened from
the time that you and Ronald Rivers first saw the deceased until after the
transaction, would you tell His Honor directly?

41

A Well, Ronald and I was coming down 25th Street and the guy was coming
toward the whiskey store.

42

We noticed the tape player so we decided that we would snatch the tape player
when he came out the liquor store and run and Ronald was supposed to hit the
man and I was supposed to grab the tape player and run.

43

Okay, so when he came out the whiskey store Ronald approached the man, I
grabbed the tape player and I ran across the street.

44

I looked around for Ronald and when I looked back they was on the ground
scuffling. I waited for Ronald to come across the street and when he came
across the street he had a knife in his hand. So I say, 'What happened, man,' and
he say, 'The guy grabbed me, I had to stab him,' just like that.

45

From there we went on around to a guy house I know and we tried to sell the
tape player and during the struggle Ron had cut his hand. I asked the man for a
sheet, so he gave me a sheet and I tore it and gave Ronald a piece and he took
it--

46

Q Were you aware that Ronald Rivers had a knife in his possession at this
time?

47

A No, I didn't.

48

Q Was part of the plan to use a knife or any other kind of weapon?

49

A No.

50

....

51

Q What were you supposed to do during the course of this incident?

52

A Well, I was suppose to grab the tape player and run after he hit him.

53

Q All right, and you did that?

54

A Yea.

55

Q When was the first time you realized that the victim had been injured?

56

A Well, I knew he was injured after--when Ronald got across the street he told
me what he did so I knew he was injured then.

57

Q All right, did you know how bad he was hurt?

58

A No.

59

....

60

Q All right, was it ever part of your plan to stab him?

61

A No, it wasn't."

62

On cross examination, appellee elaborated on his participation in the events

resulting in Mathews' death:

63

"Q All right, now, if I'm not mistaken, the plan was for Ronald to hit the man
and then when he was stunned for you to grab the tape player and run,
A Right.

64
65

....

66

Q Well, now, you knew that Ronald was going to hit him, didn't you?

67

A Right.

68

.... See when--okay, when the guy approached us Ronald asked to look at it,
right, so when he stuck it out that's when I grabbed it and that's when they start
struggling.

69

Q So Ronald did have to hit the man?

70

A Yea.

71

....

72

Q How much violence did you think was going to have to be used to take the
tape player away from the man?

73

A Well, just to hit him and I snatch it and run and that was it."

74

After appellee testified, Johnson rested the defense case, and both sides made
arguments. Johnson argued in part--

75

"Our argument in this. This defendant had no intention of killing or seriously

injuring anyone. He had no plan which involved this activity and had no
knowledge that such even took place."

76

Judge Lumpkin found appellee guilty of murder in the first degree.

77

Some time after appellee's conviction, the robbery charge against appellee was
dismissed on consent of the prosecutor.

78

Judge Lumpkin held a sentencing hearing on April 10, 1981. Johnson again
stressed the low level of appellee's participation in the events leading to
Mathews' death:

79
"[T]his
man didn't kill anybody. The evidence before the Court is uncontroverted
that he intended for no one to die or even to be injured; he intended to take a tape
player away from a young man walking down the street.
80

The--his participation in this was not the cause of the death and his

80

The--his participation in this was not the cause of the death and his
participation was not an act calculated to cause death or serious bodily injury
but that was the end result and that's what we're stuck with. Therefore, he
receives his conviction based upon a fiction of law.

81

Prior to his conviction and during the trial of the codefendant he--and during
his own trial he fully admitted his participation in this matter....

82

I'm not trying to say this in praise of the man, Your Honor, I would ask that in
view of the totality of the situation that--I know the powers of this Court are
awesome in a crime like this as far as the sentencing provisions are concerned.

83

I would ask that the Court not stick him and play the metaphor case so that he
would never expect to see the light of day again but to give him some hope
that--a chance to straighten himself out."

84

At the conclusion of the hearing, Judge Lumpkin sentenced appellee to 20 years

imprisonment, with five years suspended. A judgment of conviction was
entered the same day. In an order dated September 28, 1981, the Supreme
Court of Virginia summarily denied appellee's petition for appeal from the
judgment of conviction.

85

Appellee filed a pro se petition for a writ of habeas corpus in the Richmond
Circuit Court on April 7, 1983. Appellee claimed, first, that he had been denied
effective assistance of counsel at his trial in violation of the 6th and 14th
amendments to the United States Constitution; and, second, that, for a variety
of reasons, his indictment was constitutionally defective.

86

Richmond Circuit Judge James B. Wilkinson held an evidentiary hearing on the

state habeas petition on June 1, 1983. Another attorney, Robert P. Geary, Esq.,
(not to be confused with Detective Donald C. Gery, referred to above) was
appointed to represent appellee. At the hearing it became apparent that
appellee's ineffective assistance claim was based on Johnson's advice to
appellee to testify at the trial. Geary argued that appellee could not have been
convicted of felony murder absent proof of his participation in the robbery, and
that appellee's testimony provided the only evidence of the use of force
contemporaneous with the taking of the radio. Use of such force is an element
of robbery under Virginia law.

87

Johnson was one of the witnesses at the hearing. On cross examination by

Geary, Johnson explained his trial strategy at appellee's trial:

88

"Q Mr. Johnson, you understood in order for the Commonwealth to convict Mr.
Williams of murder, they had to prove he was a participant in the robbery of the
victim; is that right?

89

A Yes.

90

Q And, knowing that, you recommended to Mr. Williams that he testify at his
own trial?

91

A Yes.

92

Q During that time you knew he would have to admit participation in the
robbery?

93

A Yes, sir.... Mr. Williams had already testified before the same judge what his
entire participation was.... I thought he was going to be convicted if he didn't
testify.

94

Q What made you think that way?

95

A Because of his confession to the police.

96

Q What do you recall Detective Gery testifying about that?

97

A I recall Detective Gery's testimony, the best I could recall, the co-defendant,
Mr. Rivers, and the defendant, had made an agreement to assault the victim....
Mr. Rivers would do the hitting of the victim, and Mr. Williams would take the
radio and run with it. This is what he told the detective after they were arrested,
when he agreed to cooperate with them, that the codefendant would strike him.
What really happened is that the victim put up a greater fight than the codefendant expected, and this gentleman ran across the street away from the
action, at which time the cutting took place. That was the point of Mr.
Williams' trial of having him testify. It was my opinion he was going to be
convicted and at that point that is what he needed to do. I think he needed to
come forward basically and confess. Not so much confess, but at least tell what
happened in his part of the trial, because in the presentence report, he admitted
this thing candidly, at least what his involvement was....

98

Q You were, in a sense, pleading guilty by putting him on the stand?

99

A I think he had already made his confession to the police and that evidence
was already in, what he had done. I thought the Judge would be more impressed
by his coming on the stand, and he wanted to tell how he didn't do any cutting,
how he wasn't there when the actual cutting occurred, and the only way for him
to get it into evidence was for him to get on the stand and testify."

100 Judge Wilkinson denied the state habeas petition from the bench at the
conclusion of the hearing. He held that Johnson's advice to appellee to testify
was part of an ultimately successful strategy to obtain a relatively short prison
sentence. He also held that a rational trier of fact properly could have convicted
appellee based on Gery's testimony regarding appellee's confession.
101 On December 9, 1983, the Supreme Court of Virginia summarily denied
appellee's petition for appeal, being "of [the] opinion [that] there is no
reversible error in the judgment complained of."
102 Appellee filed the instant federal habeas petition on December 13, 1985, again
raising as grounds for collateral relief his ineffective assistance of counsel and
defective indictment claims. Both parties filed consents to the jurisdiction of
the magistrate. The magistrate held a hearing on the petition on August 25,
1986.
103 In an opinion dated August 29, 1986, the magistrate granted appellee's petition
for a writ of habeas corpus. The magistrate did not address appellee's defective
indictment claim. He granted the petition on the ground that appellee had been
denied effective assistance of counsel under the standards set forth in
Strickland, supra, 466 U.S. 668.
104 The magistrate recognized that under Virginia law appellee properly could not
have been convicted of felony murder absent proof that he was a participant in
the robbery of Mathews. To prove robbery under Virginia law, the magistrate
stated, a taking of property must be preceded by or be contemporaneous with
violence or intimidation. Based on these principles, the magistrate held that
Johnson's performance had been deficient in two respects. First, Gery's
testimony concerning appellee's confession was insufficient to establish the
element of violence or intimidation and therefore "the Commonwealth's case
could not have survived a motion to strike at the conclusion of the
Commonwealth's evidence." Johnson's failure to make such a motion, the
magistrate held, constituted ineffective assistance of counsel. Second,
according to the magistrate, Johnson had committed a grave error in "elect[ing]
to have [appellee] testify", since "[i]t was [appellee's] testimony which supplied

the missing element of violence during the taking of the tape player". The
magistrate stated:
105strains logic ... to conclude that an attorney does his client any service by putting
"It
his client on the witness stand to admit all of the elements of the offense with which
he is charged, after the Commonwealth has failed to prove its case. What occurred in
the instant case was not simply a tactical error, it was a complete failure of counsel
to understand, recognize or apply the most fundamental aspects of the law.
Moreover, had it not been for counsel's incompetence, petitioner could not have been
convicted of the crime for which he is now imprisoned."
106 On August 29, 1986, an order granting appellee's petition was entered on the
magistrate's opinion. Execution of the order was stayed "until such time as, in
the event of an appeal herein, the United States Court of Appeals for the Fourth
Circuit renders an opinion therein and its mandate issues."
107 On September 22, 1986, appellant filed a notice of appeal from the magistrate's
order of August 29, 1986. Also on September 22, 1986, appellant moved the
magistrate pursuant to Fed.R.App.P. 8(a) and 23 to stay enforcement of the
order of August 29 pending appeal. The magistrate granted appellant's motion
in an order entered October 2, 1986.
108 On November 12, 1986, appellee moved the magistrate pursuant to
Fed.R.App.P. 23(c) to order appellant to release him from custody pending
appeal. In an order entered November 25, 1986--over a month after appellant
filed its notice of appeal--the magistrate granted appellee's motion and ordered
appellant to release him. Pursuant to the magistrate's order, appellee was
released on a $5,000 surety bond on November 25.
109 For the reasons set forth below, we reverse the magistrate's order of August 29,
1986 which granted appellee's petition for a writ of habeas corpus.
II.
110 The framework for a proper analysis of appellee's ineffective assistance of
counsel claim is set forth in Strickland, supra, 466 U.S. 668. To prevail on that
claim, appellee must show, first, that Johnson's performance was deficient, and,
second, that his deficient performance prejudiced the defense. Id. at 687.
"Unless a defendant makes both showings, it cannot be said that the conviction
... resulted from a breakdown in the adversary process that renders the result
unreliable." Id.

111 At the outset, we wish to make it clear that we are not bound under 28 U.S.C.
Sec. 2254(d) (1982) by Judge Wilkinson's ultimate conclusion that Johnson's
performance was not constitutionally deficient. Strickland, supra, 466 U.S. at
698; Hoots v. Allsbrook, 785 F.2d 1214, 1219 & n. 9 (4th Cir.1986). This is
because ineffectiveness of counsel "is not a question of 'basic, primary, or
historical fac[t]' " but rather is a "mixed question of law and fact." Strickland,
supra, 466 U.S. at 698 (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6
(1963)).
112 Although not bound by Judge Wilkinson's ultimate conclusion, we find
ourselves in agreement with it. We hold for reasons set forth below that
appellee has failed to show that Johnson's performance was deficient. Since
appellee has failed to satisfy this first aspect of the Strickland test, we find it
neither necessary nor appropriate to decide if appellee has satisfied the second
prong of that test, namely, whether, assuming the deficiency of Johnson's
performance, that deficiency prejudiced the defense. Strickland, supra, 466
U.S. at 697 ("there is no reason for a court deciding an ineffective assistance
claim ... to address both components of the inquiry if the defendant makes an
insufficient showing on one."); Ballou v. Booker, 777 F.2d 910, 914 n. 7 (4th
Cir.1985).
113 The "performance" part of the Strickland rule requires a showing "that counsel
made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466
U.S. at 687. Our inquiry focuses on whether "counsel's representation fell
below an objective standard of reasonableness." Id. at 688. The scope of that
inquiry is quite narrow:
114 "Judicial scrutiny of counsel's performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel's assistance after
conviction ..., and it is all too easy for a court, examining counsel's defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.... A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound
trial strategy.' "

115 Strickland, supra, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
116 In the instant case, Johnson's omission in not moving to strike at the conclusion
of the Commonwealth's case, coupled with his advice to appellee to testify, led
the magistrate to conclude that Johnson "was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466
U.S. at 687. We hold that the magistrate erred. His conclusion rests on an
inadequate analysis of Virginia law on robbery and on a myopic view of the
evidence introduced by the prosecution against appellee at his trial. When
examined in light of a proper analysis of the law and a realistic appraisal of the
evidence, Johnson's challenged actions emerge as sound trial strategy that fell
well "within the wide range of reasonable professional assistance". Strickland,
supra, 466 U.S. at 689. Johnson's representation of appellee in our view was not
constitutionally deficient.
117 The Virginia statute under which appellee was charged with first degree murder
codifies the common law felony murder doctrine that any participant in a
robbery resulting in the death of another may be found guilty of murder even if
that participant did not commit the actual killing. Va.Code Ann. Sec. 18.2-32
(1982); see Wooden v. Commonwealth, 222 Va. 758, 761, 284 S.E.2d 811, 813
(1981). An essential element of proof in appellee's first degree murder trial,
therefore, was that appellee was a participant in the robbery of Mathews.
118 In Virginia, robbery is a common law offense. Bunch v. Commonwealth, 225
Va. 423, 439, 304 S.E.2d 271, 280 (1983). A Virginia statute fixes the penalty
for robbery at five years to life imprisonment, but does not define its elements.
Va.Code Ann. Sec. 18.2-58; see Pritchard v. Commonwealth, 225 Va. 559, 561,
303 S.E.2d 911, 912 (1983). Under Virginia common law, robbery is " 'the
taking, with intent to steal, of the personal property of another, from his person
or in his presence, against his will, by violence or intimidation.' " Jones v.
Commonwealth, 218 Va. 18, 21, 235 S.E.2d 313, 315 (1977) (quoting Mason
v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958)). "The
violence or intimidation that is an essential ingredient of robbery must precede
or be concomitant with the taking". Stamper v. Commonwealth, 220 Va. 260,
274, 257 S.E.2d 808, 818 (1979), cert. denied, 445 U.S. 972 (1980).
119 In the instant case, the requirement that "[t]he violence [or intimidation] must
occur before or at the time of the taking", Branch v. Commonwealth, 225 Va.
91, 94, 300 S.E.2d 758, 759 (1983), led the magistrate to reach an unequivocal
conclusion regarding application of Virginia law to the evidence at appellee's

trial:
120 is clear that the Commonwealth's case could not have survived a motion to
"[I]t
strike at the conclusion of the Commonwealth's evidence. The Commonwealth had
failed to establish that petitioner was a participant in anything other than larceny
from the person. There is a singular lack of evidence concerning the manner in
which the tape player was taken from the victim, or in relation to what was a
subsequent struggle between the victim and a co-defendant.... Had the defendant
rested his case [after Detective Gery's testimony], the only evidence before the court
would have been that the defendant took a tape player belonging to the victim and
that thereafter his co-defendant struggled with and killed the victim. Such evidence
could not have been sufficient to prove robbery under Virginia law."
121 A more comprehensive examination of Virginia cases leads us to conclude that
the law of robbery as it applies to the instant case is not as crystal clear as the
magistrate indicated.
122 Under Virginia law, the absence of direct evidence of the timing of the
intimidation or violence in relation to the taking of property is not necessarily
fatal to a finding that the defendant committed a robbery. In lieu of direct
evidence, Virginia law is satisfied by "[i]nferences ... drawn from proven facts
so long as they are reasonable and justified." Durham v. Commonwealth, 214
Va. 166, 169, 198 S.E.2d 603, 606 (1973). In Stamper, supra, 220 Va. 260, 257
S.E.2d 808, for example, the murder victims were found in a room with an
empty safe that several hours earlier had contained several thousand dollars. On
appeal from capital murder convictions--an element of which was that the
defendant had robbed the victims--the defendant claimed that the evidence was
insufficient to show that violence had preceded or had been concomitant with
the taking of the money. The Virginia Supreme Court affirmed the convictions,
holding that "[t]he evidence that the murders occurred during the commission
of a robbery is overwhelming." 220 Va. 274, 257 S.E.2d at 818. The court
stated:
123is a reasonable inference that [one of the victims] either opened the safe under
"It
duress and intimidation or was duped into opening it, and was then beaten, cut, and
shot as he attempted to prevent the consummation of the robbery. It is also a
reasonable inference that [the other victims] were shot as the robber sought to escape
with the loot and to avoid subsequent identification by eyewitnesses."
124 Id., 257 S.E.2d at 818. Cf. Pettus v. Peyton, 207 Va. 906, 908, 153 S.E.2d 278,
280 (1967) (although manner in which defendant got possession of gun from
prison guard was "not clearly shown", indictment was sufficient to charge

common-law robbery, and hence counsel was not ineffective in failing to seek
dismissal of indictment).
125 In the instant case, Detective Gery's testimony regarding appellee's confession
provided facts from which a reasonable and justifiable inference could have
been drawn that the taking of the radio was preceded by or concomitant with
violence or intimidation. Gery testified that appellee "stated that he had gotten
the tape player and cross [sic] the street and realized that a struggle was taking
place between Mr. Rivers and the victim." (emphasis added). It would have
been reasonable to infer that appellee had "gotten" the tape player through some
act of force or intimidation or that the "struggle" taking place had begun at the
time appellee had "gotten" the tape player.
126 Moreover, Gery's testimony that appellee confessed that the taking of the radio
was "a snatch type thing" might have given rise to a reasonable inference that
appellee had "gotten" the tape player through violence. Whether a "snatching"
can constitute violence appears to be an issue unresolved in Virginia. Jones v.
Commonwealth, 172 Va. 615, 1 S.E.2d 300 (1939) (reversing robbery
conviction based on snatching on ground of lack of intent permanently to
deprive victim of property; whether snatching constituted violence not
addressed); see Branch, supra, 225 Va. at 95, 300 S.E.2d at 760 (discussing
Jones ); see also State v. Carr, 43 Iowa 418 (1876) (purse snatching is robbery);
Jones v. Commonwealth, 112 Ky. 689, 66 S.W. 633 (1902) (same).
127 Finally, the prosecution was not bound by the account of the criminal incident
given in appellee's confession, which was related at trial through Gery's
testimony. "Confessions are to be weighed like all other evidence and a jury
may believe them in whole or in part, as reason may decide. If from the
confession itself, or other evidence, it appears to a rational mind that a part is
not true, a jury does not have to accept it." Durham, supra, 214 Va. at 169, 198
S.E.2d at 606 (1973) (citing Upshur v. Commonwealth, 170 Va. 649, 655, 197
S.E. 435, 437 (1938)). In the instant case, this principle would have enabled a
rational trier of fact to disbelieve those portions of appellee's confession--as
related in Gery's testimony--which disclaimed involvement in a struggle leading
to Mathews' death. An inference of the use of violence or intimidation could
have been drawn from those parts of appellee's confession admitting
involvement in the taking of the radio and in the planning of the incident.
128 Whether Judge Lumpkin or a state appellate court would have found that these
inferences were justifiable and reasonable might be said to be a matter of
speculation. The success or failure of appellee's ineffective assistance claim,
however, does not turn on whether in fact the prosecutor's case could have

survived a motion to strike. Appellee's claim fails if Johnson's failure to make

such a motion and his advice to appellee to testify appear--without the benefit
of hindsight--to have been reasonable under all of the circumstances as Johnson
saw them at the time of trial. Strickland, supra, 466 U.S. at 688-89.
129 We hold that, under all of the circumstances as they appeared to Johnson at the
time of trial, the challenged actions were reasonable since they may " 'be
considered sound trial strategy.' " Strickland, supra, 466 U.S. at 689 (quoting
Michel, supra, 350 U.S. at 101). As is apparent from the various portions of the
transcript quoted above in part I of this opinion, Johnson consistently resorted
to a single strategy throughout his representation of appellee. From the
inception of his representation, Johnson knew that appellee had confessed to
participation in the events leading to Mathews' death. In light of that full
confession, Johnson reasonably believed that appellee could have been
convicted of both felony murder and robbery. Such convictions could have
resulted in two life sentences for appellee. The likelihood therefore was great
that appellee would spend a lengthy period in prison. Faced with that
likelihood, Johnson resorted to a strategy which perhaps he expressed best
during argument to Judge Lumpkin at the sentencing hearing:
130 "I would ask that the Court not stick him and play the metaphor case so that he
would never expect to see the light of day again but to give him some hope
that--a chance to straighten himself out."
131 As a result of Johnson's efforts, by the time of trial appellee faced a single term
of life imprisonment. Consistent with his strategy, Johnson viewed the trial as a
mechanism to convince Judge Lumpkin that appellee had no intention of
harming Mathews, that he was surprised by Rivers' actions, and that he could
be rehabilitated. Considering the sentence imposed by Judge Lumpkin, the
strategy appears to have been successful.
132 Johnson's failure to move to strike and his advice to appellee to testify must be
viewed as part of his strategy. Clearly, appellee's testimony was an integral part
of Johnson's effort to convince Judge Lumpkin of appellee's limited
participation in the events leading to Mathews' death. We decline to second
guess Johnson's strategic decision.3 United States v. Alexander, 789 F.2d 1046,
1051 (4th Cir.1986); Hoots, supra, 785 F.2d at 1219. Contrary to the
magistrate's conclusion, it is not at all clear that "[i]t was [appellee's] testimony
which supplied the missing element of violence during the taking of the tape
player". In light of the inferences to be drawn from Gery's testimony referred to
above, Johnson reasonably could have believed that, under Virginia law, Gery's
testimony was sufficient to support a finding that appellee had robbed Mathews.

133 The failure to move to strike, whether it was a deliberate decision or an

oversight, cannot be said to have been unreasonable in light of the
circumstances facing Johnson. Inge v. Procunier, 758 F.2d 1010, 1016 (4th
Cir.), cert. denied, 106 S.Ct. 104 (1985). If Johnson made a deliberate decision,
it could have been based on a belief that such a motion would have been futile.
That belief would have been reasonable in light of the inferences to be drawn
from Gery's testimony. If Johnson simply did not consider making the motion,
we cannot say that such a failure was so deficient, if indeed it was deficient at
all, as to warrant a conclusion "that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466
U.S. at 687. Counsel is not ineffective merely because he overlooks one
strategy while vigilantly pursuing another. Strickland, supra, 466 U.S. at 689
("Even the best criminal defense attorneys would not defend a particular client
in the same way.").
134 We hold that appellee's ineffective assistance of counsel claim fails since he has
not shown that Johnson's performance was constitutionally deficient.
III.
To summarize:
135 To prevail on an ineffective assistance of counsel claim, a convicted defendant
must show, first, that his counsel's performance was deficient, and, second, that
the deficient performance prejudiced the defense. In granting appellee's petition
for a writ of habeas corpus, the magistrate concluded that Johnson's failure to
move to strike after the prosecution's case was concluded and his advice to
appellee to testify constituted errors of constitutional dimension and therefore
that Johnson's performance was deficient. That conclusion, in our view, rested
on inadequate analyses of both the Virginia law of robbery and the evidence
presented by the prosecution at appellee's trial. When viewed in the light of
proper analyses of Virginia law and the prosecution's evidence, we think it is
clear that Johnson's challenged actions should be viewed as reasonable tactical
decisions. Appellee therefore has failed to show that Johnson's performance
was deficient.
136 Accordingly, we hold that appellee's ineffective assistance of counsel claim
fails. We reverse the order of the magistrate granting appellee's petition for a
writ of habeas corpus. We remand the case to the magistrate for consideration
of appellee's other claim for collateral relief--that his indictment was
constitutionally defective.

137 The mandate shall issue forthwith.

138 REVERSED AND REMANDED.

Our statement of facts, unless otherwise indicated, are based upon the transcript
of appellee's state court trial

The facts in this and the following paragraph are based upon the transcript of
the evidentiary hearing on appellee's state habeas corpus petition. We discuss
this later in this opinion

In light of our holding that Johnson's advice to appellee to testify does not
constitute ineffective assistance of counsel, we find it neither necessary nor
appropriate to decide whether such a decision ever may constitute ineffective
assistance, and, if so, under what circumstances